Newham Council (202106975)

REPORT

COMPLAINT 202106975

Newham Council

18 November 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about:
   1. The height of trees in a neighbouring garden.
   2. The landlord’s response to the resident’s concerns about the above.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, complaint a, as detailed above is outside of the Ombudsman’s jurisdiction.
4. In correspondence to the landlord, the resident cited both the Anti-Social Behaviour Act 2003, and the Rights of Light Act 1959 when raising concerns about the height of the trees in her neighbour’s garden. While the Ombudsman has noted the relevant provisions, our role is to assess whether the landlord has complied with its duties and obligations – as set out in a tenancy agreement, relevant policies and procedures and regulations – as a landlord. The Ombudsman cannot determine whether the trees – or hedges – in the neighbouring garden constitute a statutory nuisance under the Anti-Social Behaviour Act 2003, or if the resident’s rights have been affected as a result of the trees. A court would be best placed to make such a decision and to therefore make orders in respect of the trees, their maintenance and whether any action should be taken to cut them down altogether.
5. Paragraph 39(i) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. As such, for the reasons detailed above, the resident’s concerns about the trees themselves fall outside of the Ombudsman’s remit. This investigation has focused on the landlord’s response to the resident’s concerns, and whether it was appropriate in the circumstances.

Background and summary of events

6. The resident is a tenant of the landlord’s property. The property is a two-bedroom ground floor flat.
7. On 15 January 2021, the resident made a formal complaint to the landlord. She said that she wished to complain about her neighbour as there were trees in her garden which were over two metres tall. The resident quoted the Anti-Social Behaviour Act 2003 (the Act), and the Rights of Light Act 1959 and explained that owing to the height of the trees, there was a reduced amount of natural sunlight in her garden and that this was affecting her enjoyment of it. The resident added that the lack of sunlight was preventing her from growing flowers and produce within her garden; and that the neighbour had been using her fence to secure the trees with ropes.
8. On 10 February, the resident sought an update on the status of her complaint and queried when the Resident Services Team was attending to inspect the garden. The landlord responded to the resident on 15 February. It explained that it had liaised with an officer within its green space team (the team) and they had confirmed that as the only access to the garden was through the property, an inspection would have to wait until the then current Covid-19 restrictions had been lifted.
9. The resident contacted the landlord on 6 March to request an update as she understood that there had been a change in Covid ‘road map’. The landlord responded on 8 March to advise that the team had inspected the tree from behind the property and could “see no urgency”. It added that the team had added the property to a list of required inspections, and would look again to determine what works were required following the lifting of restrictions.
10. The resident sought a further update on 19 April. The landlord responded the next day and informed the resident that it was still only dealing with emergency services as the Covid-19 restrictions had not been fully relaxed. It added that the work had been categorised as “non-urgent”, and that the neighbouring property was on a list for further inspection once full services had resumed.
11. On 16 May, the resident wrote to the landlord to query when action was likely to be taken, adding that the ‘road map’ was due to be further relaxed the next day. The resident explained that the trees were further overgrown, and that her neighbour was not maintaining them. The landlord confirmed on 17 May that it had referred the resident’s enquiry to the relevant team, and that it would be in touch once the matter had been investigated and it had received a response from the team.
12. Later the same day, the landlord updated the resident with the team’s findings. It explained that it had been able to inspect, and it considered the neighbour’s garden to be well maintained. It added that there was no overhang into the resident’s garden, and no works were necessary. It added that it did not prune trees or shrubs for complaints relating to sunlight.
13. The resident responded on the same day and explained that the trees were very high – at least 12 foot high; and she was therefore unhappy with the response she had received. The resident said that the trees were “hanging” and explained that the overhang was at the back of the garden which was adjacent to a private garden. She queried how the team was able to view the rear of the garden and reach its conclusion. The resident attached photos to her email which she said demonstrated the overhang.
14. On 18 May, the landlord wrote to the resident and advised that the team had provided its own evidence that the neighbouring garden had been planted with “small ornamental shrubs and trees” which were “well maintained” and did not overhang into the resident’s garden. It added that the team said there was no reason to intervene.
15. The landlord and resident continued to exchange correspondence and on 21 May, the landlord informed the resident that the team was happy with its investigation and response; however, if the resident did not agree they could ask for a review to be conducted by another officer. If the resident wished to do this, she would need to provide reasons as to why her concerns had not been addressed.
16. The resident subsequently escalated her complaint, and the landlord issued its response in June 2021. In a letter dated 22 June, the landlord said:
    1. It understood that the resident had requested the escalation of her complaint as she did not accept the conclusion from the relevant team.
    2. It was sorry to learn of the resident’s dissatisfaction; however, the team had visited the location twice and considered the resident’s concerns in full when reaching its decision.
    3. While the resident had informed it that her neighbour’s trees were overgrown and this affected the enjoyment of her garden, its visited had found the neighbours trees and shrubs to be well maintained. The landlord acknowledged that the resident disagreed with this.
    4. The trees in questions were not owned by the local authority and did not overhang on to public footpaths. As such, it was unable to take any further action.
    5. There was no limit on the size of tree that could be grown within the garden; and if the branches did overhang on to the resident’s property, she could remove the relevant branches.
    6. If the trees or shrubs did constitute a nuisance, the neighbour would be responsible for cutting them back.
    7. There was no right to light set out in law, nor was there a right to a view.
    8. It considered that the matter was a private dispute between the resident and her neighbour; and the resident could try to speak with the neighbour about the matter to see if she would be willing to consider reducing the height of the tree.
    9. The review marked the end of its internal complaints process; however, the resident could refer her matter to the Local Government and Social Care Ombudsman (LGSCO) if she remained dissatisfied with the outcome.
17. The resident replied to the landlord to request further consideration of her complaint. She expressed her concern that the landlord had failed to take into account the specific concerns that she had raised – and the legislation that she had cited in her initial complaint email.
18. On 24 June, the landlord reiterated its position. It explained further that its obligation where overgrown trees were concerned related to those that were overhanging on public footpaths and roads. The landlord emphasised that it was a private dispute between the resident and her neighbour, and her of her right to refer her complaint to the LGSCO.
19. As the resident was dissatisfied with the landlord’s response, she contacted the LGSCO and was advised that she should refer her concerns about the landlord’s response to her complaint to this Service. The resident has advised that she remained unhappy with the conclusion reached by the team who visited the property, and the overall conclusion by the landlord that it would not take any action in relation to the trees.

The landlord’s obligations

20. There are no obligations on the landlord under the tenancy agreement in relation to the maintenance of individual gardens, or trees within a resident’s garden. Information in relation to gardens is detailed on the landlord’s website. This states that if a resident has a garden, it is their responsibility for maintaining it and keeping it tidy. This includes, regular lawn mowing, trimming hedges and bushes and making sure that weeds, plants and bushes do not grow into neighbouring gardens or on to pathways.
21. The information adds that if a resident does not look after their garden, it may take action. This includes, clearing the garden and/or removing or pruning trees and charging the resident for the works; or issuing a litter clearance notice.

Assessment and findings

22. In response to the resident’s concerns, the landlord arranged for the relevant team to visit the property and to determine whether it was necessary to take any action. It is acknowledged that there was a delay between the resident notifying the landlord of her concerns, and the team carrying out its inspection. However, this was not unreasonable given the situation with Covid-19 restrictions that were in place at the time.
23. Following its inspection, the team concluded that the trees and shrubs were “well maintained”, and that there were no grounds for it to take any action. The resident disagreed with the decision; and queried how the team had inspected the rear of the garden given that it backed on to a private garden. The landlord did not provide a clear response to this query, and it would have been reasonable to do so in the circumstances. While it is noted that the landlord had explained that the team had provided its own evidence, it would have been helpful to explain how the inspection had taken place, or what it roughly entailed. This would have helped to ensure that the landlord was being transparent in its consideration of the resident’s concerns. That such an explanation was not offered was a shortcoming in the landlord’s response to the resident’s concerns.
24. Given the resident’s continued dissatisfaction, the landlord referred the matter back to the team and it reiterated its position. While it is acknowledged that the resident disagrees with the conclusion that was reached, the landlord was entitled to rely on the conclusions of its team. As it had not found evidence that the neighbour was failing to maintain her garden, its decision not to take any action was reasonable in the circumstances.
25. However, when the landlord responded to the complaint at stage two of its process, it informed the resident that there was “no limit” on the size of tree that her neighbour could plant within her garden. This response was not in keeping with the information on the landlord’s website which states – “you should make sure that any shrubs or plants you grow are suitable for the size of your garden and will not overgrow into neighbouring areas. This is particularly important for trees or tall shrubs which you should not plant if they will grow to be a nuisance for your neighbours”.
26. As such, while it would not be practicable for the landlord to check what trees were being planted within a resident’s garden, its comments in the stage two response were not entirely correct. There is some obligation on a resident to ensure that the plants and trees they select for their gardens are chosen carefully. While the landlord was correct in advising the resident that her concerns about the neighbouring trees was a private matter between her and her neighbour, it would have been appropriate for the landlord to take more care in explaining that it did not have control over what residents may choose to plant in their gardens; however, if it were the case that a resident failed to maintain their garden, it could take steps to intervene.
27. Within the stage two response, the landlord informed the resident that if she remained dissatisfied with the outcome of her complaint, she could refer the matter to the LGSCO for further consideration. It is not clear why the landlord signposted the resident to the LGSCO. While it is acknowledged that the landlord is a local authority and some of its complaints may fall under the jurisdiction of the LGSCO, this complaint related to the resident’s use and enjoyment of her garden – a housing matter. The resident did contact the LGSCO following the landlord’s advice, and she was subsequently signposted to this Service; however, this was the cause of some inconvenience to her.

Determination (decision)

28. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in landlord’s response to the resident’s concerns about the height of trees in a neighbouring garden.

Reasons

29. In response to the resident’s concerns, the landlord appropriately arranged for the neighbour’s garden to be inspected. The team concluded that the garden was well-maintained and declined to take action. The landlord was entitled to rely on the conclusions of the team. However, during the complaint, the resident asked a specific question about how the garden was inspected and it would have been appropriate for the landlord to respond to this query.
30. When the landlord issued its stage two response, it made a statement which was not in keeping with the information on its website about a resident’s obligations when choosing what to plant within a garden. In addition, the landlord incorrectly signposted the resident to the LGSCO, which was the cause of some inconvenience to her.

Orders

31. Within four weeks of the date of this decision, the landlord should apologise to the resident for failing to respond to her query about how the inspection was conducted, and for the incorrect information contained in the stage two response.

Recommendation

32. Within six weeks of the date of this decision, the landlord should issue further training or a reminder to staff about the organisations to which residents may refer their complaints once they have exhausted the internal complaints procedure.